Ayala v. Douglas

• Decision Date: 09 December 2008
• Docket Number: 4769.
• Citation: 869 N.Y.S.2d 47,2008 NY Slip Op 09650,57 A.D.3d 266
• Parties: VINCENT AYALA, an Infant, by His Mother and Natural Guardian, LAYDA ROSA, et al., Respondents, v. CAROL DOUGLAS, Appellant.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 266

869 N.Y.S.2d 47

2008 NY Slip Op 09650

VINCENT AYALA, an Infant, by His Mother and Natural Guardian, LAYDA ROSA, et al., Respondents, v. CAROL DOUGLAS, Appellant.

4769.

Appellate Division of the Supreme Court of New York, First Department.

December 9, 2008.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered July 30, 2007, which denied defendant's motion for summary judgment dismissing the complaint on the ground that the infant plaintiff did not sustain a serious injury within

the meaning of Insurance Law § 5102 (d), and granted plaintiffs' cross motion for summary judgment on the issue of liability, unanimously modified, on the law, to grant defendant's motion to the extent of dismissing the infant plaintiff's 90/180-day claim, and otherwise affirmed, without costs.

Defendant established prima facie that the infant plaintiff did not sustain a serious injury (see e.g. Nagbe v Minigreen Hacking Group, 22 AD3d 326 [2005]). She submitted an orthopedic surgeon's findings on examination that plaintiff's sprains of the cervical, thoracic and lumbar spine and left knee had resolved and a radiologist's findings that MRIs of plaintiff's lumbar spine showed degenerative changes manifested by disc hydration, disc space narrowing and a mild annular bulge and that the MRI of plaintiff's left knee showed intact lateral menisci and no abnormalities.

In opposition, plaintiffs raised a triable issue of fact by providing objective evidence of a permanent disability causally related to the accident (see e.g. Engles v Claude, 39 AD3d 357 [2007]). They submitted an affidavit by a physician who diagnosed a herniated disc and derangement of plaintiff's left knee, quantified limitations in the ranges of motion of the lumbar spine and left knee, and opined that the injuries were causally related to the accident, and a radiologist's report that the MRI of plaintiff's left knee showed a tear of the medial meniscus, the MRI of his cervical spine showed straightening of the normal lordosis, and the MRI of his lumbar spine revealed disc herniation. Although unsworn, plaintiff's radiologist's reports were properly considered, because they were reviewed by defendant's expert in reaching his conclusion (see id.).

Plaintiffs did not, however, raise an inference that a "medically determined" injury or impairment prevented plaintiff from performing substantially all his usual and customary daily activities for at least 90 of the first 180 days...